MR D BEAUMONT APPLICANT v AMICUS MSF [2004] UKEAT 0122_03_0408

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0122_03_0408Case No Appeal No. UKEAT/0122/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D BEAUMONT APPLICANTAPPELLANTAMICUS MSFRESPONDENT
Before
His Honour Judge Birtles Mr D EvansDate 4 August 2004
[1]APPEARANCES For the Applicant IN PERSON For the Respondent MS JENNIFER EADY (Of Counsel) Instructed by: EAD Solicitors Employment Law Unit Third Floor, Minster House 17/19 Paradise Street Liverpool L1 3EU SUMMARY Compensation for expulsion from trade union and subsequent failure to take all the steps necessary for securing the reverse of past expulsion: Section 67 Trade Union and Labour Relations (Consolidation) Act 1972. HIS HONOUR JUDGE BIRTLES Introduction This is the hearing of a claim for compensation by Mr David Beaumont against Amicus MSF. It arises out of and follows from our decision on 12 February 2004 that the Respondent had failed to take all the steps necessary for securing the reversal of the Applicant's expulsion from the Respondent union following the declaration granted by the Employment Tribunal on 14 October 2002.[2]It is not necessary in this judgment to go into the factual background. It is fully set out in our first reserved judgment. Suffice it to say, that on 25 February 2002 the National Executive Committee of the Respondent Trade Union expelled the Applicant from membership. On 22 May 2002 the Applicant presented an Originating Application to the London Central Employment Tribunal complaining of being unjustifiably disciplined by the Respondent trade union, contrary to Section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992. On 14 September 2002 the National Executive Committee withdrew the Applicant's expulsion from the union. Until October 2002 the Respondent conceded the Applicant's case before the Employment Tribunal and the Tribunal made the following decision:
"(1) By consent it is declared that the Applicant was unjustifiably disciplined by the Respondent when he was expelled from the union, contrary to Section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992. (2) The Respondent is ordered to pay costs to the Applicant in the sum of £1,381.40."
At the Review Hearing before the same Tribunal on 31 October 2003 the Employment Tribunal varied its original decision on costs and substituted an order for costs payable by the Respondent to the Applicant in the sum of £1,035.40. Preliminary Matters[3]At the beginning of the hearing we were asked by Mr Beaumont whether any of us had discussed the case with Mr Roger Lyons, the former General Secretary of the Respondent Trade Union and also a lay member of the Employment Appeal Tribunal. Judge Birtles indicated that he had (he thought) said 'good morning' to Mr Lyons since the previous hearing on the day when Mr Lyons was sitting at the Employment Appeal Tribunal but that he had not discussed this case with him at all. Mr Evans and Mrs Matthias both stated that they had not spoken to Mr Lyons about this case.[4]Draft directions for this hearing were given with the judgment on the first hearing. They were subsequently amended. We have an agreed bundle of documents and both sides have filed skeleton arguments. In addition Ms Eady has lodged a bundle of authorities. During the course of the hearing Mr Beaumont handed up a further authority as well as a more detailed schedule of costs.[5]At the beginning of the hearing Judge Birtles invited Mr Beaumont to give evidence if he so wished but he decided that he did not desire to do. In the circumstances the judgment is based upon the oral submissions and skeleton arguments. Jurisdiction of the Employment Appeal Tribunal[6]Our jurisdiction is an original one which is of course most unusual for the Employment Appeal Tribunal which of its nature is normally concerned with appeals from Employment Tribunals. It is therefore important that we set out the statutory provision upon which our jurisdiction is grounded. It is found in Section 67(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 ("The 1992 Act"). It says this:
"(2) An application under this section shall be made to the Employment Appeal Tribunal if, when it is made – (a) the determination infringing the Applicant's right not to be unjustifiably disciplined has not been revoked, or (b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination; and in any other case it shall be made to an [employment tribunal]." (5) The amount of compensation awarded shall, subject to the following provisions, be such as the Employment Appeal Tribunal or Employment Tribunal considers just and equitable in all the circumstances. (6) (Not relevant) (7) (Not relevant) (8) The amount of compensation [calculated in accordance with sub section (5) to (7) shall not exceed the aggregate of – (a) an amount equal to 30 times the limit for the time being imposed by Section 227(1)(a) of the Employment Rights Act 1996 (maximum amount of week's pay for basic award in unfair dismissal cases), and (b) an amount equal to the limit for the time being imposed by [section 124(1)] of that Act (maximum compensatory award in such cases); and, in the case of an award by the Employment Appeal Tribunal, shall not be less than the amount for the time being specified in section 176(6) of this Act (minimum award by Employment Appeal Tribunal in cases of exclusion or expulsion from the union)"
[7]No issue arises in this application as to Section 67(6) or (7). Ms Eady has not sought to argue that the Applicant has failed to mitigate his loss or that he has caused or contributed to it. The minimum award that we can make in this case is £5,700.00: 1992 Act, Section 176(6).[8]In our original judgment we found that the Respondent had failed in two material respects to take action required by Section 67(2)(b) of the 1992 Act. We decided that the Respondent had failed all the steps necessary for reversing the determination of the Applicant's expulsion from the Respondent union by:(1) Failing to write a letter which in clear and unequivocal term revoked the original letter from the General Secretary dated 25 February 2002 to the Branch: Original Applicant's bundle - pages 204-205 which gave detailed and specific instructions to the Branch about the Applicant's expulsion and how to deal with it.(2) A similar failure in respect of notification to the London Regional Council for the Respondent union: First judgment, pages 11E-13D. We indicated that we also considered that we could award compensation for the manner of dismissal and its effect upon the Applicant. That began in time from the date of expulsion ie 25 February 2002: First judgment, page 14, paragraphs 19D - 15D. The Employment Appeal Tribunal Decision[9]The Applicant served a schedule of loss and the Respondent served a counter schedule as ordered. Both parties' skeleton arguments and oral submissions were addressed to the six headings set out in the Applicant's schedule of loss. We therefore propose to deal with each of those headings in turn. Ground One: Injury to feelings[10]The Applicant submitted he should be awarded £15,000.00 for injury to feelings under the following headings:(a) For the act of expulsion;(b) For the reasons given and the suggestion of anti-Semitism/racism;(c) By the method of its delivery;(d) By the Respondent's insistence that the allegations which justified the expulsion were true. In support of those submissions Mr Beaumont took us through the agreed bundle of documents and the events prior to and subsequent to his expulsion.[11]Ms Eady submitted that the wording of Section 67(5) of the Trade Union and Labour Relations (Consolidation) Act 1992 ie "just and equitable in all the circumstances" is the same as the language empowering an Employment Tribunal to award compensation for unfair dismissal: Employment Rights Act 1996, Section 123(1). The language is different from power to award compensation under the Sex Discrimination Act 1975, section 65(1); the Race Relations Act 1976, section 56(1) and the Disability Discrimination Act 1995, section 8(2) where the power to award compensation (amongst other remedies) is such that Tribunal "considers just and equitable". Ms Eady therefore submitted that the power of this Tribunal (and indeed Employment Tribunals) to award compensation for injury to feelings is confined to those permitted by the Court of Appeal in Dunnachie v Kingston-Upon-Hull City Council [2004] EWCA Civ 84 . This case has been on appeal to the Judicial Committee of the House of Lords. The hearing has taken place but no judgment has been given although one is expected before the end of July 2004. .[12]We do not accept Ms Eady's submission that we are limited in our power to award compensation for injury to feelings to the rule in Dunnachie . It would follow from Ms Eady's submission that if the House of Lords decides that compensation for injury to feelings cannot be awarded in unfair dismissal claim then we have no power under Section 67(5) of the Trade Union and Labour Relations (Consolidation) Act 1992 to award such damages either. We disagree with Ms Eady for two reasons. First, we are concerned with the 1992 Act and not the unfair dismissal provisions of the Employment Rights Act 1996. Second, we prefer the approach of this Tribunal in Bradley and Others v National And Local Government Offices Association [1991] ICR 359 where Wood J said that the present cause of action it was statutory tort. That is the approach to compensation in the ordinary discrimination statutes ie Sex Discrimination Act 1975, Race Relations Act 1976 and Disability Discrimination Act 1995.[13]Ms Eady also made submissions to us about the amount claimed by the Applicant. We have considered the authorities especially London Borough of Hackney v Adams [2003] IRLR 402 and Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 . Having considered these submissions we are of the view that the appropriate figure for injury to feelings in this case is £5,700.00. Ground Two[14]Mr Beaumont's second heading of compensation claim is High Handed Behaviour. He refers in particular to five issues. They are the conduct of his disciplinary feelings the execution of the sanction, the appeal process, post reinstatement and the present position. The phrase "High Handed Behaviour" appears in paragraph 20 of our original decision. In our judgment there is no separate head of damage under this heading. We equate High Handed Behaviour with the power to award aggravated damages which is Mr Beaumont's third head of damages. We therefore conflate the two headings into a claim for aggravated damages. As we have indicated Mr Beaumont puts it in two ways. First, the action of the Respondent in dealing with the conduct of his disciplinary proceedings and the failure to take appropriate action after he was reinstated and second, the fact that the Respondent has defended these proceedings. He refers us to Zaiwalla and Co and Another v Walia [2002] IRLR 797. What that case does is make it clear that the award of aggravated damages to reflect the way in which proceedings had been defended is exceptional.[15]Ms Eady submits the two categories of High Handed Behaviour and aggravated damages are the same and she submits that on the facts there is no evidence which justifies the award of aggravated damages. We agree. We do not consider the matters raised by Mr Beaumont either in respect of the manner for his expulsion or the conduct of the legal proceedings entitles us to award aggravated damages. In our judgment the award of £5,700.00 for injury to feelings more than compensate him for the damage he has suffered. Ground Three: Exemplary Damages[16]In Kuddus (AP) v Chief Constable of Leicestershire Constabulary [2001] 3All ER 193 it is clear that the House of Lords decided that these three categories of cases where exemplary damages could be awarded. They are: 1. Oppressive, arbitrary or unconstitional action actions by servants of the Government; 2. Conduct (by the defendant) calculated to make a profit for himself which may well exceed the compensation payable to the claimant; 3. Exemplary damages expressly authorised by statute.[17]None of those categories apply to this case and therefore we can make no award of exemplary damages. Ground Four: Miscellaneous Expenses[18]Mr Beaumont amplified his claim for miscellaneous expenses by producing a supplementary schedule relating to them. Having carefully considered that claim in our judgment it is clear that this is a claim for costs. Mr Beaumont specifically stated that he was not making a claim for costs. He therefore did not consider this as an application for costs because our jurisdiction in that matter is limited by Regulation 34 of the Employment Appeal Tribunal Rules 1993. It was clear that part at least of Mr Beaumont's claim related to matters relating to the hearing in the Employment Tribunal. An award of costs was made there. We refuse to make an award for miscellaneous expenses on the grounds that it would not be just and equitable to do so when we have a limited jurisdiction as to costs. Ground Five: Interest[19]Mr Beaumont also made a claim for interest. However, neither he nor Ms Eady was able to point to any statutory power which we have to award interest. We do not believe we have such a power. We therefore refuse to make an order for interest. Conclusion[20]For these reasons we make an award of compensation to Mr Beaumont under Section 60(5) of the Trade Union and Labour Relations (Consolidation) Act 1992 in the sum of £5,700.00.